The New Nation - Internet Edition

Appellate Division

(Criminal)

Md. Ruhul Amin-C.J.

Mohammad Fazlul Karim-J.

M.M. Ruhul Amin-I.

CRIMINAL PETITION FOR LEAVE TO APPEAL Nos. 351-358 of 2006.

(From the judgment and order dated 6.8.2006 passed by the High Court Division in Criminal Appeal Nos.3471, 3712, 3724, 3732, 4066, 4560 and 4561 of 2003 respectively.)

The State Petitioner (in all the cases).

Vs.

Md. Ruhul Amin and others tttttttttt.Respondents (in Crl..P.No.351 of 2006).

Md. Amjad Hossain @ Amjad ttttttttt.Respondent (in Crl.P.No.352 of 2006).

Ali Hossain Bhuiyan @ Lamba Ali & anor t.. Respondents (in Cr1.P.No.353 of 2006).

Md. Ishaque ttttttt..

Respondent (in Crl.P.No.354 of 2006).

Md. Zubayerul Islam @ Zubayer tt. Respondent (in Crl.P.No.355 of 2006).

Md. Alauddin

tttttttRespondent (in Crl.P.No.356 of 2006).

Md. Shahin

tttttttt..Respondent (in Cr1.P.No.357 of 2006) .

Ishaque

ttttttRespondent (in CrI.P.No.358 of 2006).

For the Petitioners (in all the cases) :

Mr. Abdur Rouf, Deputy Attorney-General, instmcted by Mr. Ibrahim Khalil, Advocate-on- Record.

For the Respondent (Crl. P.No. 353 . of 2006) :

Mr. Khandker Mahbub Hossain instructed by Mr. Md. Abu Siddique, Advocate-on-Record.

For the Respondent (Crl.P.Nos. 352, 351 of 2006) :

Mr. Khandkar Mahbub Hossain,

instructed by Mr. Kazi Siddiqur Rahman, Advocate on-Record.

For the Respondent (Cr1. P.No.354 of 2006) : Mr. Khandker Mahbub Hossain, instructed by Mr. Abu Siddique, Advocate on-Record.

For the Respondent (in Cr1.P.No.355 of 2006)

: Mr. Syed Mahbubur Rahman, Advocate- on-Record.

For the Respondent (in Crl.P.NO.356 of 2006)

: Mr. Khandker Mahbub Hossain, instructed by Mr. Abu Siddique, Advocate on-Record.

For The Respondent (in Cr1.P.No.357 of 2006) : Mr. Zahirul Islam,

Advocate-on- Record

Judgment: August 19, 2007.

Evidence Act, 1872-Section 32-

Dying declaration when made not under the imminent expectation of death cannot be acceptable in evidence as to the cause of the death of the deceased who died long after the occurrence.

When the occurrence is said to have taken place in the darkness of the night and there is absence of means of recognition and the witnesses contradicted on material points and when the dying declaration is written in polished Bangla language though the deceased used to talk in their local colloquial language of Lakshmipur, the High Court Division held the prosecution case was doubtful and accordingly, allowed all the appeals and acquitted the convict-appellants. The apex court also upheld -the impugned judgment and order passed by the High Court Division.

The High Court Division opined that P Ws.2,3 and 4 were examined by the investigating officer (P. W.14) after a period of 277 days, 377 days and 398 days respectively after the occurrence that took place on 06.04.1997 and, as such, the statements of these witnesses cannot be accepted but the trial Court relied upon their evidence in convicting the Convicts. In our view, the evidence of these witnesses viz., P.Ws.2,3 & 4 were rightly left out of consideration by the High Court Division.. (Para 11)

The High Court Division held that P W.13, wife of the deceased, told that the latter used to talk and write in colloquial language of Lakshmipur District but the dying declaration demonstrates that the language employed therein is not in colloquial language of Lakshmipur' District, rather it was in polished Bengali language.

t..(Para 12)

In the facts and circumstances of the case and in view of the discussions made above, we are of the view that the High Court Division took into consideration all aspects of the matter and there is no cogent reason to interfere with the impugned judgmenttt.(Para 14)

JUDGMENT

M. M. RUHUL AMIN-J: These petitions for leave to appeal are directed against the common judgment and order dated 06.08.2006 passed by a Division Bench of the High Court Division in Criminal Appeal No.3712 of 2003 preferred by convict-appellants, (1). Md. Ruhul Amin, (2). Ali Hossain @ Bete Ali, (3). Md. Selim & (4). Md. Jahed (Crl. P. No.351 of 2006), Criminal Appeal No.4066 of 2003 preferred by convict-appellant Md. Amjad Hossain @ Amjad (Crl.P.No.352 of 2006), Criminal Appeal No.4560 of 2003 preferred by convict-appellants, (1) Ali Hossain Bhuiyan. @ Lamba Ali & (2). Md. Emdadul Islam @ Emdadul (Crl.P.No.353 of 2006), Criminal Appeal No.3724 of 2003 preferred by convict-appellant, Md. Ishaque (Crl.P.No.354 of 2006), Criminal Appeal No.3732 of 2003 preferred by convict appellant, Zubayerul Islam @ Zubayer (Crl.P.No.355 of 2006), Criminal Appeal No.4561 of 2003 preferred by convict appellant, Md. Alatiddin (Crl.P.No.356 of 2006), Criminal Appeal No.3471 of 2003 preferred by convict-appellant Md. Shahin (CrI.P.No.357 of 2006) and Criminal Appeal No.3724 of 2003 preferred by convict-appellant Md. Ishaque (CrI. P.No.358 of 2006) respectively allowing the Appeals and thereby acquitting the convict-appellants.

2. The case of the prosecution, in short, is that Shah Alam Babul (since dead) 'was Supervisor in Azampur News Paper Centre within Police Station-Uttara. On 06.04.1997 at about 10.30 P.M. victim Shah Alam Babul along with Hawkers namely Sobhan, Abul Kashem, Abdur Rahim and Shahidullah were discussing regarding sale of newspapers in the Habib Market of Sector No.5 of Uttara. At that time the accused persons took Shah Alam @ Babul to the embankment of Bawnia Beel and the aforesaid Sobhan, Abul Kashem, Abdul' Rahim and Shahidullah went with Shah Alam @ Babul. The accused persons caused cut injury in his two hands and also cut vein of two legs of the victim Babul by a Chapati, Chines axe and also fractured the bones of both arms of the victim and other accused persons namely, Ali Bossin Bhuiya Shahin, Ruhul Amin, Emdadul, Jubari, Jahed, Selim and Amzad caused injury in. different parts of the body of the victim by sharp knife. The further allegation is that the accused persons threatened the associates of the victim Shah Alam @ Babul that if they disclose the occurrence to anybody, their condition would be as that of the victim Babu.

The further allegation is that P.W.10, Sobhan and his companions informed the occurrence over the telephone from the house of Zakir Hossain @ Zaki to Monir who was then in the office of Dhaka Sangbadpatra Hawkers Samity and advised them to go to Uttara Police Station and then Monir informed the matter to Tofael Ahmed eldest brother of victim Shah Alam @ Babu!' Monir also informed the matter to Golam Rasul Hassan, Mizan and Shafiqur Rahman. The informant informed the matter to police and the police along with the informant party went to the 'beel' of Boawnia and recovered the victim Babul in critical and dying condition and with the help of the police brought the victim to Orthopaedic Hospital at Sher-e-Bangla Nagar, Dhaka:

3. Police took up investigation of the case and during investigation victim Shah Alam Babul died in the hospital on 13.05.1997. Police on completion of investigation submitted charge sheet against 14 accused persons including the petitioners under section 302/34 of the Penal Code.

4. The case was tried by the learned Metropolitan Additional Sessions Judge, 2nd Court, Dhaka who convicted the accused respondents in the respective petition for Leave under sections 302/34 of the Penal Code and sentenced each of them to suffer rigorous imprisonment for life and to pay a fine of Tk. 50,000/ - each in default to suffer rigorous imprisonment for l(one) year more .

5. Being aggrieved, the convicts moved the High Court Division in appeal and the High Court Division allowed all the appeals and acquitted the convict respondents as aforesaid.

6. We have heard Mr. Abdur Rouf, the learned Deputy Attorney General for the petitioner in all the petition for leave to appeal and Mr. Khandker Mahbub Hossain, the learned Counsel for the respondents in Criminal Petition Nos.351356 of 2006 and Mr. Zahirul Islam, the learned Advocate-on-Record for the respondent in Criminal Petition No.357 of 2006 and perused the judgment of the High Court Division and other connected papers.

7. The prosecution in support of its case mainly relied upon the evidence of P.Ws 10 and 11 who are said to be eye-witnesses to the occurrence, the dying declaration of victim Shah Alam Babul'

8. The High court Division after considering the evidence of all the P.Ws. specially 10 and 11, in detail held that P.Ws. 10 and 11 did not at all support prosecution case and the dying declaration was also very much doubtful one and no conviction could be awarded upon convict-appellants on the basis of such doubtful dying declaration.

Regarding the dying declaration the High Court Division further held that the victim. was not under hopeless expectation of death at the time when he made the dying declaration and the victim died long after and, as such, the dying declaration cannot be treated an important piece of evidence and relied upon.

The High Court Division also held that no certificate was obtained from any doctor to the effect that deceased Shah Alam @ Babul after receiving injuries in vital parts of his body was quite fit to make a dying declaration.

9. The High Court Division further held that the place of occurrence, according to prosecution, was a dark Beel (field) and in absence of means of recognition it was not at all possible on the part of victim Shah A1am Babul to recognise convict-appellants and it was also not at all possible on his part to notice the specific parts played by each of the accused person in causing assaults upon him and hence recognition was very much a doubtful one. The High Court Division further held that "Prosecution case suffers from inherent infirmities and improbabilities. and inherent infirmities and improbabilities render the prosecution case wholly incredible."

10. The High Court Division also observed that the trial Court held that the abscondence of 8 ( eight) accused persons who were tried in absentia was an incriminating circumstance connecting them in the offence. The High Court Division held that mere abscondence in the absence of any positive evidence connecting the absentee accused with the commission of the crime is no ground to find them guilty.

11. The High Court Division opined that PWs.2,3 and 4 were examined by the investigating officer (P.W.14) after a period of 277 days, 377 days and 398 days respectively after the occurrence that took place on 06.04.1997 and, as such, the statements of these witnesses cannot be accepted but the trial Court relied upon their evidence in convicting the convicts. In our view the evidence of P.Ws . 2,3 & 4 were rightly left out of consideration by the High court Division.

12. The prosecution also relied upon the evidence of P.W.13, wife of deceased Shah Alam @ Babul. We have also perused her evidence. She stated that she had talk with her husband when he regained his sense and her husband disclosed to her that he did not want to furnish statement to the Magistrate and her husband also told her that statement had been obtained' from him forcibly. The High Court Division held that P. W.13, wife of the deceased, told that the latter used to talk and write in colloquial language of Lakshmipur District but the dying declaration demonstrates that the language employed therein is not in colloquial language' of Lakshmipur District, rather it was in polished Bengali language.

13. The High Court Division "on a meticulous survey of evidences, browsing materials on record and rummaging fact and circumstances of the case and embarking a research on acceptability of· Dying Declaration and also law engrafted in Sections 302 and 34 of the Penal Code" concluded that the prosecution has not been able to prove the case beyond all reasonable doubts and accordingly, all the appeals were allowed and convict appellants were acquitted of the charge levelled against them.

14. In the facts and circumstances of the case and in view of the discussions made above, we are of the view that the High Court Division took into consideration all aspects of the matter and there is no cogent reason to interfere with the impugned judgment.

15. All the petitions dismissed.